SCVG and KLD (No 2) - [2015] FamCA 687

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO 2)

[2015] FamCA 687

FAMILY LAW – COSTS – whether any order for costs should be made in a parenting case. Whether, if such an order should be found to be justified, it should be on some indemnity basis. Father found to have acted unreasonably as a litigant notwithstanding mother not successful in obtaining order for father’s complete exclusion. Father’s conduct exacerbated the litigation causing mother’s costs unnecessarily. Indemnity costs awarded but as to 50 per cent.

Family Law Act 1975 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Hawkins and Roe [2012] FamCAFC 77
I and I (1995) FLC 92-625
Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143
Munday v Bowman (1997) Fam LR 321 at 322
Prantage and Prantage (2013) FLC 93-544
Younghanns and Younghanns (2000) FLC 93-029

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

20 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Cronin J

SUBMISSIONS RECEIVED FROM

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Macphillamy's Solicitors

Orders

That the father pay 50 per cent of the costs of the mother on an indemnity bases at the rate set out in the costs agreement under which the mother had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.
That the said costs referred to in paragraph 1 be by agreement and failing agreement as assessed by a registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR COSTS JUDGMENT

The issue before me is whether Mr SCVG should pay the costs (or some of them) to Ms KLD for the costs she has incurred and if so, how that should be determined.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear his or her own costs. If however, the Court is of opinion that there are circumstances that justify it in so doing, subject to the considerations to which I shall turn below, the Court can make such order as it considers just.
The extra considerations are set out in s 117(2A) and the applicable rules of court. There are three other sub-sections but they are not relevant here.
Section 117(2A) requires the Court in considering what if any order should be made, to have regard to a number of matters to which I shall turn below. The relevant rules of court are set out in Chapter 19 of the rules.
The proceedings in this case between Mr SCVG and Ms KLD concerned the parenting of their two children. At the conclusion of the hearing of those proceedings in early February 2015, I reserved judgment. Orders and consequent reasons were delivered on 27 February 2015. The findings in those reasons are relevant to whether or not there is a justifiable reason to make an order for costs at all.
At paragraph 10 of the orders, I provided for costs applications to be by written submission and for the determination to be made in chambers. Ms KLD made her application by formal application in a case supported by an affidavit and a financial statement but the substance of the application was contained in a written submission. That submission was drawn by counsel who appeared at the final hearing. All of her relevant documents were filed on 16 March 2015 which was in time within the orders.
Mr SCVG was to have responded by 31 March 2015 but Ms KLD agreed to an extension of time. Mr SCVG’s response was contained in his counsel’s submission filed on 15 April 2015 along with an affidavit and a financial statement. Notwithstanding Mr SCVG had represented himself at the final hearing (as distinct from earlier interlocutory hearings and in respect of the preparation of documents), his written submissions were drawn by counsel. He then filed two further affidavits on 21 April 2015 and 2 July 2015. He sent an email to the Court on 16 April 2015 pointing to an error in his affidavit which I have recognised. The inclusion of these two affidavits after the substantive submission was opposed by Ms KLD but I have read them on the basis that even though his submission in April 2015 was drawn by his counsel, he was still an unrepresented litigant. I did so to see whether there were matters of substance which might affect my determination in circumstances where I did not have the benefit of oral argument. Having read the affidavits, I find they do not assist me or take his counsel’s submissions any further. They have therefore otherwise been given no weight.
In the substantive proceedings, Mr SCVG sought orders for equal shared parental responsibility whilst Ms KLD sought that she solely have that. In extensive previous litigation in the Federal Circuit Court, an order had been made for equal shared parental responsibility and that order was extant at the final hearing. In relation to time between the children and Mr SCVG which had been controversial for a long time, Mr SCVG sought a transitional arrangement leading to a week-about or shared care parenting. With the benefit of hindsight, on any view, that was not only ambitious, it was unrealistic. That approach by Mr SCVG undoubtedly added to the complexity of the case. For her part, Ms KLD sought a complete exclusion of Mr SCVG from the lives of the children including in relation to communication by telephone. Whilst there were undoubtedly good reasons to alter the status quo because of the views adopted by the children and the position taken by Mr SCVG which had frustrated Ms KLD, the social science evidence would have made Ms KLD’s approach difficult but not impossible. It was only in the trial, and again hindsight assists, the Court’s conclusion was that complete exclusion of Mr SCVG was not the answer.
Whilst the matters set out above were not the only matters litigated between the parties, the other disputes were of a peripheral nature.
I made orders giving Ms KLD sole parental responsibility and that the children spend no face to face time with Mr SCVG. I limited his communication with the children to Sundays by telephone and correspondence.
In beginning my reasons, I observed that there had been ten years of litigation in circumstances where the younger of the two children was only ten years old. For reasons which I explained, it was appropriate to make an order under s 118 of the Act restraining Mr SCVG from bringing any application under the Act concerning the children without leave of a judge of this Court.
The time for any appeal against all or any of those orders has now expired.
Counsel for Ms KLD submitted that it was justifiable to make an order for costs against Mr SCVG. She raised five main points.
The first point was that Mr SCVG had made numerous groundless allegations against Ms KLD including that she had alienated the children, lied and manufactured evidence. The second ground was that Mr SCVG had drawn out the proceedings by his conduct. Reference was made to the various disputes at both the pretrial and the trial stage. It was submitted that Mr SCVG had engaged in a relentless pursuit of Ms KLD.
The third ground was that the conduct of the proceedings had created financial hardship for Ms KLD and reference was made to the various stages of the litigation into which Ms KLD had been drawn simply by virtue of the pursuit of orders by Mr SCVG. The fourth point was that the proceedings had caused Ms KLD emotional distress and here, reference was made to the various delays and changes of courses of action by Mr SCVG including appeals against orders made along the pathway.
The fifth ground was that Mr SCVG lacked bona fides. This ground focussed on an assertion that Mr SCVG’s application was designed to achieve a result of the return of the children to Sydney from Canberra. In previous proceedings, the “relocation” desire of Mr SCVG had not been successful.
In the submission on behalf of Mr SCVG, counsel observed that the general rule pursuant to “s.117C” was that each party bears his or her own costs. That was clearly a typographical error because s 117C relates to offers of settlement. The principle relating to each party paying their own costs lies in s 117. More importantly, counsel went on to submit that the general rule was that each party paid their own costs was particularly so in parenting matters where there were serious issues to be tried. In my view, that is an incorrect statement of the law. The law relating to costs in proceedings under the Act is as I have described it above. It may be that costs orders are more difficult to justify in parenting proceedings but that is not to the point.
The submission on behalf of Mr SCVG went on to say that in this particular case neither party was wholly unsuccessful. That is a reference to s 117(2A)(e) and counsel emphasised the use of the statutory words “wholly unsuccessful” distinguishing those two words from an alternative which he described as “being relatively more successful”. It is important to observe here as the Full Court did in Collins and Collins (1985) FLC 91-603 that the discretion in s 117 is broad and that the relevant factors in s 117(2A) are not to be read in a restrictive way. Any one or more of the factors in s 117(2A) may be the sole foundation for an order for costs (see Fitzgerald v Fish (2005) 33 Fam LR 123) but it is the law that all of the factors must be taken into account and balanced (see I and I (1995) FLC 92-625).
Because Ms KLD through her counsel submitted that not only should the Court make an order for costs against Mr SCVG but that it should also be on an indemnity basis, counsel for Mr SCVG submitted that orders of that nature were “even more sparingly made and usually reserved for cases ‘of an exceptional kind’”. Counsel relied upon the decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 as discussed in Munday v Bowman (1997) 22 Fam LR 321 at 322. The submission quite properly set out some of the points made in Munday v Bowman. There are more recent considerations by the Full Court of this Court such as in Prantage and Prantage (2013) FLC 93-544. I shall turn to that decision below.
Counsel for Mr SCVG submitted that the issue before the Court was the relationship between the children and each parent and related matters and he distinguished that situation from the circumstances under consideration in Munday and Bowman (supra) which related to a party having no chance of success, allegations of fraud and misconduct causing loss of time for the court and other parties. It is true that the issue which was the focus of the parties concerned the relationship between the children and Mr SCVG but there were many aspects under consideration much of which required an examination of the ten year history of the separation.
Ultimately, the starting and concluding point is that set out in s 117 of the Act namely whether it is just to make such an order. In Hawkins and Roe [2012] FamCAFC 77 May and Ainsley-Wallace JJ at [14] said:
In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of Family Court litigation in relation to children is quite different to a commercial dispute in the State or Federal courts.
Their Honours went on to say:
Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of children, then a judge may well conclude that there are circumstances justifying an order for costs.
In that particular case, their Honours overturned the trial judge’s decision to make an order for costs on the basis that there was no evidence to support such an order. In a dissenting judgment, Thackray J would have allowed the order to stand but his Honour said [162]:
I also respectfully agree with May and Ainsley-Wallace JJ that the “general rule” that each party will pay their own costs is not often displaced in parenting cases, and that the nature of such litigation is quite different to a commercial dispute in other courts. However, the statute itself does not differentiate between parenting and financial cases. The discretion given to a trial judge to determine a costs dispute, even in a parenting case, is a very wide one and I am not persuaded there is an adequate basis for overturning the order.
One might add to those considerations the fact that persistent litigation in parenting cases without a significant change of circumstances runs counter to the whole concept of finality and may be a justifiable circumstance to depart from the principle in s 117.
I reject the submission by counsel for Mr SCVG (if indeed the submission was intended to say that costs ought not be made in parenting matters where there are serious issues to be tried). In my view, the correct approach is as the Full Court has indicated above.
Counsel for Mr SCVG then dealt with the issue of indemnity costs. I propose to come back to that issue on the basis that it is not a relevant consideration until such time as a court finds that there are justifiable circumstances to depart from the principle set out in s 117.
The submission on behalf of Mr SCVG then went on to set out the various factors laid out in s 117(2A). His submission was that in respect of the financial circumstances of each of the parties, Ms KLD had failed to make a full and frank disclosure of her financial affairs because she had made no attempt to assess the value of the house and car provided for her use by her employer which in reality, was a family connected organisation. It was submitted that an adverse inference should be drawn against Ms KLD. It was further submitted that the Court could not be satisfied that Ms V D owed her mother a substantial sum of money referrable to ten years of legal costs because it was an inconsistent statement with what the transcript showed she had said to the Social Security Appeals Tribunal. Thus it was submitted, the Court should conclude that Ms KLD had some significant financial resources. Whilst the transcript of the tribunal hearing appears at odds with Ms KLD’s stated position, even if she had significantly greater financial resources than Mr SCVG, that alone is not a basis not to make a costs order. A financially stronger litigant conducting a case improperly soon weakens a financially weaker litigant. The financial circumstances factor is needed in the Act to assist in determining what impact a costs order would have. Here, I am satisfied that even with the family’s support, Ms KLD has unnecessarily incurred costs for the reasons that follow.
What the submission of Mr SCVG’s counsel did not address was the question of the financial circumstances of Mr SCVG. His financial statement filed at the same time as the submission indicated that the total value of property that he owned exceeded $2 million but that predominantly related to a house over which there was a mortgage of $1.6 million. The only other “asset” in which Mr SCVG had an interest was in a superannuation fund and in that, he put his interest at just in excess of $1 million. As earlier indicated, no one factor in s 117(2A) is decisive of the question of whether an order for costs should be made. What I do conclude is that Mr SCVG has the resources to which I have just made mention and on any view, could afford to make a contribution towards legal costs if an order was made. It is of note he had $30,000 outstanding legal fees.
The next submission on behalf of Mr SCVG related to s 117(2A)(c) concerning the conduct of the parties to the proceedings into the proceedings. It was submitted that Ms KLD had not suggested that the “relevant conduct” of Mr SCVG caused her difficulty. Rather, it was submitted, her complaint centred on his unwillingness to accept her position namely that there should be no contact whatsoever with the children. One needs to be very careful here to distinguish Mr SCVG’s “conduct” as a parent from that as a litigant. I agree with counsel for Mr SCVG that the question must be addressed about conduct in relation to the proceedings but it must be noted that s 117(2A)(c) is extremely wide. The applicant for costs must satisfy the Court that there is a nexus between what is complained about and the costs in issue in the proceedings. As I have earlier observed, the grounds of the application for costs relied essentially on five points. I return to those below.
The submission on behalf of Mr SCVG then turned to the question of whether any party had been wholly unsuccessful in the proceedings. The submission put was that from the judgment, neither party had been “wholly unsuccessful”. That picked up my observations in the final reasons that I had rejected the proposals of each party albeit that I adopted a position much closer to that of Ms KLD than that of Mr SCVG. Reference was made also to the fact that earlier decisions, and in particular that of Altobelli FM, were completely different. In that dispute between the parties, his Honour was critical of the mother for relocating the children unilaterally and he went on to find that one could only be “mildly critical” of Mr SCVG. Whilst there is no doubt that that determination was made and quite properly on the evidence before his Honour, reliance upon what Altobelli F M found does not assist Mr SCVG having regard to the findings that I made. Again, the question is whether or not what Mr SCVG did up to and including in the proceedings, was conduct contemplated by s 117(2A)(c). In respect of success or otherwise, the Court also has a very wide discretion in s 117(2A)(g) to take into account such other matters as it considers relevant. That very broad discretion is sufficient to enable the Court to look at the overall circumstances of the case and whether the proceedings were in fact being conducted by Mr SCVG on the basis that he was genuinely and reasonably pursuing the best interests of the children or whether it was fundamentally obvious bearing in mind all of the evidence, that he had another objective. It was submitted by counsel for Mr SCVG that the issues raised by his client were genuine and understandable. The basis of that submission was the following:
The genesis of the conflict between the parties was the mother’s unilateral and unconveyed decision to take the children away from the father.
That submission unashamedly asserts that the mother caused the proceedings. That is hard to accept in circumstances where for whatever reason these proceedings began, two courts made orders of a final nature which sadly did not bring the dispute about the children to an end. Even if the “genesis” was such, time had marched on. The evidence of Mr SCVG in the final hearing showed that he had not. Accordingly, I reject that submission.
It must also be remembered that costs are not awarded by way of punishment of the unsuccessful party but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to endure the legal proceedings. (Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143 citing with approval Cretazzo v Lombardi [1975] 13 SASR 4 and Chilli v Abbott (1981) 53 FLR 108).

In the submission on behalf of Ms KLD, counsel referred to the following:
·Mr SCVG commenced the proceedings shortly after engaging in criminal conduct and continued it thereafter;
·Mr SCVG sought a week-about shared care arrangement notwithstanding his inability to communicate in anything other than on an offensive manner and with the absence of cooperation;
·Mr SCVG accused the mother of deliberately lying and manufacturing evidence and accused her of dishonesty during cross-examination;
·Mr SCVG wrote numerous emails which were put in evidence to indicate the intractable nature of the dispute such that a shared care arrangement was untenable;
·Mr SCVG had an ulterior motive to get the children to return to Sydney which was an application he had not been successful in before Altobelli FM in the then Federal Magistrates Court and that that was exposed only the calling of and production of considerable evidence;
·Mr SCVG initially agreed to not pursuing time with the children but when the matter was transferred before Faulks DCJ, he unsuccessfully sought interim orders and then made various applications including for special leave for the High Court where he was also unsuccessful.;
·Notwithstanding the opinion of the family consultant to the contrary, Mr SCVG claimed that Ms KLD had influenced the children against him and coached them;
·Mr SCVG had through his lawyers, conveyed after an order was made for the appointment of a single expert psychologist, that he had contact with that practitioner, causing the wife to become involved with a further single expert, Dr L;
·With the appointment of a new expert, in January 2015, Mr SCVG sought the discharge of that expert and for the appointment of an alternate expert but that order was not made;
·Mr SCVG relied upon his own treating psychiatrist without having prepared an affidavit for him and that inconvenience caused Ms KLD extra costs;
·Over the trial of five days, Mr SCVG persisted with his allegations that Ms KLD had been instrumental in bringing about the children’s negative attitude and had thereby alienated them.
It is important again to remember the statutory basis upon which an order for costs can be made. I am very conscious that Mr SCVG was a persistent and very focussed litigant. The findings made in the final hearing shed light on whether there was a complete absence of preparedness to compromise in the face of very strong evidence and whether Mr SCVG was motivated by his own interests rather than those of his children. No doubt the conduct of Mr SCVG and his persistence caused Ms KLD to be engaged in considerable litigation but she desired the exclusion of Mr SCVG from the lives of the children. As the findings to which I refer now will show, Ms KLD was well justified in adopting the position that she did even in the context of evidence which was of an expert nature indicating that the children needed to have some form of relationship, albeit very limited with their father.
In the judgment, I made the following findings:
·Nothing in the evidence justified a conclusion that Ms KLD had caused the predicament of the children being negative towards any contact with Mr SCVG;
·The suggestion of Mr SCVG that Ms KLD was orchestrating the situation was wrong;
·The children were articulating their own views contrary to the assertion of Mr SCVG who said that their views were the result of a deliberate or unconscious behaviour of Ms KLD;
·During the pre-trial period Mr SCVG was still endeavouring to convince one of the children to move to Sydney;
·Notwithstanding evidence and assertion by Mr SCVG that Ms KLD through her very lifestyle was putting the children at physical risk, there was no indication that there was any support for such a contention;
·The rejection by the children of their father was understandable and justified;
·The criminal conduct of Mr SCVG was deliberate and indicative that Mr SCVG had no insight into his own conduct not only in relation to the impact on adults but also on his children who were aware of what had occurred. That understanding of the children explained their reticence about contact with Mr SCVG;
·Parental responsibility including such issues as religion were an issue and Mr SCVG would do things his way even to the point of thwarting the mother’s position;
·Mr SCVG wrongly asserted that the mother had breached orders which had not been made. The expert evidence was accepted that there was an impact on Ms KLD as the primary attachment figure;
·Ms KLD had to call evidence about a number of incidents about which Mr SCVG’s denial was equivocal;
·Mr SCVG used strategies to try and make the children succumb to his way of thinking.
Having regard to the findings that Mr SCVG did have an ulterior plan to wrest control of the children from their mother and he was persistent, put the mother to the dilemma of not only preparing material to show what he had done but also to respond to the various material that he provided and upon which he relied. Examples of the dilemma can be seen in respect of the evidence of Dr L.
Mr SCVG relied upon the evidence of Dr L to support his argument but it did not in any way support an order of the nature and extent that he sought. He insisted upon calling Dr G without an affidavit yet the evidence of Dr G did not assist him. It highlighted the problem that Mr SCVG was creating by his own dysfunctional behaviour. He relied upon affidavits of witnesses who were unashamedly character witnesses who said nothing to indicate their knowledge of the depth of the problem. The filing of those affidavits required the mother to contemplate them and deal with them. The evidence of Ms W and Mr F did not support the position of the father but rather orders of a restrictive nature albeit not to the extent that Ms KLD wanted but they certainly did not assist Mr SCVG’s cause for a shared care arrangement. Mr SCVG’s own assertion of alienation by Ms KLD was found to be without any substance.
I find in the circumstances that by the time the trial began the evidence was overwhelming in favour of altering what had previously been a fairly standard parent and child contact arrangement. That arrangement had been altered at an interim stage because of Mr SCVG’s own criminal behaviour and in the final hearing, he wanted the Court to accept that it was a “brain snap” or some form of aberrant behaviour that should have been ignored. He, having adopted that position, caused Ms KLD to challenge his position that this was some form of aberration. Ms KLD was entitled if not then obliged to show that this was consistent with his modus operandi and that there was little prospect of change. I find the relevance of this conduct was that relating to Mr SCVG’s role as a litigant. In my view, that evidence put Ms KLD to considerable inconvenience and expense. It is not a matter of “punishing” Mr SCVG for having created angst for Ms KLD but rather that she should be compensated for having undertaken a process which in several aspects, particularly those just mentioned, were unnecessary.
I find in the circumstances that it is justifiable to depart from the principle that each party pay their own costs. That is not sufficient to make an order for costs however. The Court is obliged to contemplate the matters set out in s 117(2A).
In respect of the financial circumstances of the parties, I am not in a position to make a finding that Ms KLD has misled the Court or not comprehensively disclosed her financial position. Little of the evidence in the affidavit of Mr SCVG assists me. The financial statement relied upon by Ms KLD required her to subjectively set out as she saw things. The transcript earlier mentioned provided by Mr SCVG does no more than indicate what I consider to be an equivocal positon about who was covering Ms KLD’s costs at that time. The important issue is the question of whether or not the parties are impecunious or in a strong financial position and what impact an order for costs would have on their financial circumstances. Whilst Ms KLD could clearly contribute towards her own costs, there is nothing in the material as I earlier indicated, to suggest that Mr SCVG could not contribute towards her costs either.
There are no questions of legal aid assistance to either party. There is no issue in this case of the failure of either party to comply with previous orders of the Court.
In respect of whether Mr SCVG was wholly unsuccessful, I agree with his counsel that the expression “wholly unsuccessful” must mean entirely without success and indeed, Mr SCVG successfully convinced the Court that it was not in the best interests of the two children for orders to be made in the terms sought by Ms KLD. But as I earlier observed, that is only one aspect of the matter. By focussing on the question of whether someone is wholly unsuccessful, the Court can see where issues were litigated that should not have been having regard to the evidence that was available.
Section 117(2A)(f) is of no assistance in this particular case. The polarised positions of the parties did not alter and have not altered since the judgment was handed down.
Section 117(2A)(g) also allows the Court to take into account any other matters that are relevant in the circumstances. I agree with the submission put on behalf of Ms KLD that the pursuit of orders in the terms sought by Mr SCVG entitled the Court to say that there are doubts about his bona fides. The way in which he went about the proceedings accusing Ms KLD of alienating the children without any foundation in the context of ten years of litigation enables me to find that Mr SCVG intended to pursue what he wanted having not obtained that outcome in the previous proceedings. That persistence, caused Ms KLD significant costs by having to participate in proceedings which were really about why the children had adopted a position of reticence to have a relationship with their father.
Accordingly, there are sufficient factors overall in s 117(2A) of the Act to justify making an order for costs against Mr SCVG.
I turn then to the question of whether the costs should be on the basis sought by Ms KLD namely that there be an order for “indemnity costs” and what costs order should be made.
In Prantage (supra) the Full Court reviewed the law relating to indemnity costs. It affirmed the view expressed in Kohan and Kohan (1993) FLC 92-340 which was that an indemnity costs order was a very great departure from the normal standard in at least family law jurisdictions. Some of the so called departures from the norm can be seen in the examples given in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248. One of those examples was the making of an allegation that ought never to have been made and another was the undue prolongation of the case by groundless contentions.
But as was said in Younghanns and Younghanns (2000) FLC 93-029, all that is required is for the Court to be satisfied some particular facts and circumstances warrant an order other than on a party and party basis.
Clearly, the Court now has the benefit of hindsight as to the utility and relevance of the course of action adopted by the litigants. That course of action is judged by reference to whether it was reasonable to conduct a litigation which imposed a significant cost burden (in this case on Ms KLD). In my view, she had no choice but to participate. I have already found that the approach of Mr SCVG was unreasonable.
But by reference to the conduct of Mr SCVG, I am satisfied that the normal rule should be departed from and costs should be awarded on an indemnity basis but the question is to what extent.
Rule 19.18(1) of the rules of the court sets out the method of calculation of various orders for costs and include those on an indemnity basis. But as discussed in Prantage (supra), indemnity means different things to different people.
Rule 19.18(3)(a) to (f) are discretionary considerations for the court when contemplating making an order for costs at all. In summary, using that sub-rule, I am satisfied that this was very important litigation because the dispute between the parents had been going on for ten years and had involved at least two final hearings and things had not got any better for the children. The litigation was complex and difficult because of the approaches taken as I have described them. I have already found that the behaviour as a litigant of Mr SCVG was not reasonable having regard to all of the evidence but in particular, his persistence in relation to getting his own way. I have seen the costs incurred on behalf of Ms KLD and am unable to say whether that is greater or lesser than other parenting cases but it would seem that the substantial portion of the costs arose from the start of 2015 in the lead up to the February hearing.
I am mindful however that Ms KLD also wanted a significant departure from the parenting orders that were then extant. The determination of the issue that she promoted took far less time to test but it indeed was indicative of her frustration in not being able to assist the children to get on with their lives having regard to the conduct of Mr SCVG. Thus, to some extent, Ms KLD had issues that she required the Court to determine.
Costs are clearly discretionary and I have no doubt that Ms KLD should contribute something towards her own costs having regard to what she required the Court to determine. In relation to the conduct of the litigation however, I am satisfied that 50 per cent related to issues associated with the position adopted by Mr SCVG.
Accordingly, it is just in my view to make an order that Mr SCVG pay 50 per cent of the costs incurred by Ms KLD from the period from 1 January 2015 until the completion of the submissions for costs by her counsel and that those costs be determined on the basis of the rate Ms KLD was charged by her respective lawyers. There will be orders accordingly.

I certify that the preceding Fifty Four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 August 2015.

Associate:

Date: 20 August 2015